Lawyer Opposing Health Law Is Familiar Face to the Justices

By KEVIN SACK

Published: October 27, 2011

WASHINGTON -- It would be hard for any lawyer to fathom a more riveting caseload than the one Paul D. Clement carried during his seven years in President George W. Bush's Justice Department.

As solicitor general for three years and deputy solicitor for four, Mr. Clement appeared before the Supreme Court 49 times, defended the administration's detention of terrorism suspects, fought off challenges to the McCain-Feingold campaign finance law and validated the prosecution of medical marijuana growers in a landmark commerce case.

But if possible, the docket that Mr. Clement has compiled in the private sector as one of Washington's leading appellate litigators may situate him even closer to the center of national discourse.

At the moment, he is defending both Arizona's tough new law against illegal immigration and Congress's prohibition against interstate recognition of same-sex marriages. And if, as expected, the Supreme Court soon announces that it will hear a challenge to last year's health care law, it seems increasingly likely that it will be Mr. Clement who argues, in the thick of the 2012 campaign, that President Obama's signature domestic achievement is unconstitutional.

This week and last, Mr. Clement, 45, filed briefs supporting the Obama administration's request that the court accept his health care challenge from among the several pending before it. He is lead counsel in the high-profile Florida case filed by Republican governors and attorneys general from 26 states. In August, he and his co-counsel, Michael A. Carvin, won the only appellate ruling to invalidate the act's keystone provision, which will require most Americans to obtain medical insurance, starting in 2014.

That opinion, from the Court of Appeals for the 11th Circuit in Atlanta, directly contradicts a ruling from the Sixth Circuit in Cincinnati, and both rulings, along with others, have been appealed to the Supreme Court.

''I do think there's a good chance that the court will take the 11th Circuit case,'' Mr. Clement said in an interview in his M Street office. ''It may take other cases as well. But in the 11th Circuit case you've got a statute of Congress struck down as unconstitutional, in a way that creates a circuit split, and the federal government is petitioning. I'm not sure there's ever been a case that had those three things going for it that wasn't granted.''

The other thing the 11th Circuit case may have going for it is Mr. Clement. As a former clerk to Justice Antonin Scalia, Mr. Clement maintains a breezy but respectful rapport with the justices. It is assumed that his familiar name on a petition can improve the 1-in-100 chance that a case will be accepted for consideration.

That is among the reasons Gov. Jan Brewer of Arizona hired Mr. Clement to handle her state's Supreme Court appeal of rulings against its groundbreaking immigration law. The speaker of the House, John A. Boehner, engaged him to contest challenges to the 1996 Defense of Marriage Act after the Obama Justice Department declared it was unconstitutional and stopped defending it.

Mr. Clement, who has argued more Supreme Court cases since 2000 than any other lawyer, made his 54th appearance in mid-October and has another scheduled for December. As a change of pace, he is among the lawyers representing the National Basketball Association in labor negotiations with its locked-out players, reprising a role he played for the National Football League last spring.

Florida's attorney general, Pam Bondi, said the plaintiffs in the health care litigation hired Mr. Clement at the appellate stage out of conviction that their case was ''the ideal vehicle'' for the Supreme Court.

''Having Paul Clement as our lawyer cements that,'' she said, ''because his presence assures the Supreme Court that our arguments will be presented as professionally, intelligently and effectively as possible.''

Justice Department officials said the health care law would be defended in the Supreme Court by the current solicitor general, Donald B. Verrilli Jr.

Florida and the other plaintiff states have a contract with Mr. Clement, at discounted rates, that is capped at $250,000. In the same-sex marriage case, House Republicans recently tripled the cap on his fees to $1.5 million, paid from tax coffers. Without being precise, Mr. Clement confirmed speculation that he typically bills in the range of $1,000 an hour.

Other appellate specialists say Mr. Clement brings both exhaustive preparation and acute insight to his cases. The son of an accountant and a homemaker from Cedarburg, Wis., north of Milwaukee, he received his bachelor's degree from Georgetown, a master's in economics from Cambridge and a law degree from Harvard, where he helped edit the law review when Barack Obama was its president. Mr. Clement now lives in Alexandria, Va., with his wife and three sons.

Despite his relative youth, Mr. Clement ranks eighth among active lawyers in the number of Supreme Court appearances. (The record belongs to the 19th-century advocate Walter Jones, with 317, followed by Daniel Webster, according to the Yale Biographical Dictionary of American Law.)